from the oops dept

We've written plenty about the Librarian of Congress' decision to remove the DMCA anti-circumvention exemption that applied to mobile phone unlocking, along with the White House petition that got over 100,000 votes, and the White House's quick response to say that it agreed that phone unlocking should be legal. But for reasons that are not at all clear, it seemed to think it was something that could be fixed by telco law, even though it was copyright law that got us into the mess.

Lawyer Jonathan Band, who works for the Association of Research Libraries, has put out a really excellent short legal primer on the issue, which is a highly readable 8 pages, and covers all the necessary details and background, including a few things you probably have not read elsewhere (such as how some court cases had already narrowed the old "exemption" anyway). However, the most interesting part to me is where he talks about how the White House's position is likely in violation of existing international trade agreements and almost certainly against what the administration itself, via the USTR, is proposing in the Trans Pacific Partnership (TPP) discussions:

The White House position, however, may be inconsistent with the U.S. proposal
in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the KoreaU.S. Free Trade Agreement (KORUS) and other free trade agreements to which the
United States is a party. This demonstrates the danger of including in international
agreements rigid provisions that do not accommodate technological development.

KORUS obligates the United States and Korea to adopt provisions concerning the
technological protection measures based on section 1201 of the DMCA. Furthermore,
KORUS mandates that the parties "confine exceptions and limitations" to the
circumvention prohibition to a specific list of exceptions that matches the specific
exceptions in the DMCA. Cell phone unlocking, of course, is not on that list. KORUS
does allow for administrative procedures like the DMCA's rule-making to adopt
temporary exemptions, but not permanent ones. The challenge before Congress is to
devise a permanent exception for cell phone unlocking that does not breach the
obligations under KORUS and other similar free trade agreements.

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was
leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions.
Because TPP is currently under negotiation, there still is time to make sure that the TPP
does not prevent national governments, including the United States, from amending their
laws to permit the unlocking of cell phones and other wireless devices.

This is why we find international agreements like ACTA, TPP and now TAFTA so worrisome. Even when they do not directly change the law, they often lock us into bad laws such that we cannot easily fix them. This is one small example, but an important one. Hopefully, the White House and the USTR will (1) release the current negotiating text for the IP chapter on the TPP so that knowledgeable people can go through and it make sure these little "easter eggs" are not present (2) make a clear and definitive statement that it will not agree to any international agreement that would do something as ridiculous as tie Congress's hands when it comes to allowing people to unlock their mobile phones.

from the shameful dept

We've talked about the latest efforts concerning a treaty for the blind and others with disabilities, which will carve out some rules to give them slightly more rights to ignore certain copyrights in order to allow them to access some works. The negotiations have been going on for years (decades, depending on who you talk to) and the copyright maximalists absolutely hate the idea. They see it as opening the barn door for others to rush through asking for copyright law to be scaled back for them as well. There have been numerous stall tactics used and, of course, lots and lots of secrecy.

Today after a short plenary session, the informal negotiations were scheduled to begin behind closed doors again. But WIPO decided to permit NGOs attending the negotiations to follow a live audio of the discussions, subject to a ban on the use of the Internet and related social media to report on the negotiations.

The ban specifically singled out "twitter, blogs, news reports, and email lists" and extends to social media in general.

Love argued that Chatham House rules could be effective (in which you can talk about what was said, just not who said it). But, of course, the US said that was unacceptable. Because, of course, the US doesn't want anyone to know about its crazy arguments, even if they're not attached to the US itself.

But, really, the bigger problem is the threat of retaliation under this system for reporting on info discovered through other means. Love explains the problem:

I assume we will be permitted to report and comment in other ways that do not rely upon this audio feed, but people will be careful because there is now a threat to cut off that access if the the forbidden information starts showing up on the Internet, and it maybe difficult to persuade people that the audio feed was not the source. This means less information will be disseminated, including the reports from the relatively accessible negotiators, of which there are many who are willing to talk in the breaks. These bans on the use of social media are increasingly being sought by transparency averse negotiators, particularly when pursuing anti-consumer and anti-freedom policies.

It is simply unacceptable these days to hold such negotiations in complete secrecy. It is for reasons like this that people don't trust such organizations and think they're corrupt. Even if they're not corrupt and totally aboveboard, just doing these kinds of things in secret stirs up distrust for the government.

from the getting-closer... dept

Last month, we wrote about how the White House had bumped up the number of signatures it requires to get on "We the People..." petitions from 25,000 to 100,000 before it is "required" to respond (though, its response rate on qualifying petitions has been dismal). Around the same time, we also talked about how unlocking your mobile phone, so it could be used on other carriers, was switching from being legal to being illegal, thanks to the Librarian of Congress choosing not to renew an exemption to the DMCA's anti-circumvention rules for unlocking mobile phones.

While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough. Lots of people were reasonably angered by this story, and a petition sprung up on the White House site, urging the President to reinstate the exemption:

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

The petition itself was actually set up by Sina Khanifar, who used to run a business around unlocking phones, and was threatened by Motorola back in 2005. It was that experience that led to the original attempt to convince the Librarian of Congress to establish the unlocking exemption from the DMCA. He has explained why the exemption is important, and how this simple change not only makes something perfectly reasonable against the law, but how it effectively kills off the business he had built around unlocking phones and helping consumers actually use what they want. And, contrary to what some claim about the need to keep phones locked, he points out that there are already contractual ways to incentivize people to keep their phones locked. Lots of carriers have long term contracts with large early termination fees. They don't need the threat of copyright penalties on top of that as well.

Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.

The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.

But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.

As we've noted time and time again, the DMCA anti-circumvention clause has little to do with basic copyright, and everything to do with big companies trying to control what you thought you had purchased.

The petition needs to get to 100,000 signatures by February 23rd, and is currently sitting at about 62,000. It's possible, but it may be difficult. And, of course, it's not even clear what (if anything) the administration can really do. The DMCA exemption rulemaking only comes around every three years. Having them jump in with an "off-year" change would be unprecedented -- and could potentially lead to legal challenges. Congress, however, could step in and fix things with a bit of regulation, but it's unclear if they have the appetite to do that. Still, having people speak out and show that they think this bit of copyright law is crazy and restrictive seems like a good thing.

from the that'll-make-the-lawyers-happy dept

While there's no doubt that copyright licensing is a mess that is often holding back key innovations online, it's a bit worrisome to hear about how the EU Commission is exploring the issue. It has set up a "Licenses for Europe" campaign, but designed in a way that locks in a predetermined conclusion that the only way to deal with locked up content in Europe is to get the big copyright holders to agree to more easily determined licenses. Again, this is not necessarily a bad thing, but it ignores the larger picture: including the fact that most content produced today is coming from individuals and not as a part of a larger industry.

La Quadrature du Net explains why the whole setup is a problem:

Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.

La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.

Just starting out from the point of view, that "user generated content" is somehow a different category than "content," itself is problematic, but much more problematic is the fact that there is no interest from this effort in things that would actually help out on a large scale: such as recognizing that copyright doesn't make much sense for many of these works, and that sharing and building on others' works is a part of how culture works (and that "licenses" can often get in the way of such things). In fact, the EU Commission made sure that no discussions of things like fair use were to be discussed, since the point of the discussion was just "licenses."

The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.

This is really unfortunate. Because when you start from the position of licensing everything, you ignore the fact that not everything needs to be licensed. And, as a result, you end up with over-licensing, which is a real problem. Apparently, things got even worse once the sessions began. Even though there were rules in place designed to keep the details of the proceedings mostly secret, some indications from inside were that things were not going well, thanks to some tweets from COADEC.

Someone tried to point out that this seemed to be putting the cart before the horse, asking whether or not there has been any evaluation done as to whether or not licensing was really the best solution, and the moderator responded "well we want to deliver something." We've heard this before, many times. Politicians have no interest in making sure the solution they're pushing for makes sense or works, so long as they're seen as "doing something." We saw that nearly a decade ago when Senator Orrin Hatch tried to push his INDUCE Act, and when quizzed about it, he admitted that it might cause problems, but he had to "do something" or else.

Further making a mockery of the whole thing, someone brought up Creative Commons licensing... and that conversation was also shut down as a "certain industry" claimed it was "too early" to discuss such things. Apparently, this "certain industry" doesn't realize that Creative Commons is a form of licensing too. Like too many maximalists, they consider Creative Commons not to be a form of licensing, but another form of "copyright exceptions," (which it is not).

All in all, the whole session appears to have made a mockery of any attempt at real, meaningful copyright reform. One more comment from the session sort of highlighted the whole problem. As the moderator and people from "certain industries" shut down all talk of exceptions, and focused solely on how to set up a system with more and more licenses, an attendee asked a simple, pointed question:

Attendee asks, who gives a licence for mining the Internet?

And that, right there, encapsulates the entire problem. If you think that we shouldn't be talking about exceptions, and that everything requires licensing, what you're really saying is that search engines are illegal. Searching the internet without "permission" is illegal. And that's the world that the EU Commissions seems to think we should be heading towards.

Yes, locked up content is a problem, and fixing licensing is one part of the solution, but it cannot be done absent a more comprehensive look at the issues of the internet and copyright today. Completely ignoring things like fair use or other "exceptions" to copyright (I prefer to think of them as the rights of the public rather than "exceptions") means you get bad plans with bad results that border on the ridiculous.

from the ridiculous dept

We've always had our concerns about the ridiculous DMCA "exemptions" process concerning circumvention of digital locks. If you don't know, the DMCA has a strict anti-circumvention rule that says breaking digital locks, such as DRM, is itself a violation of copyright law, even if the purpose of the lock-breaking does not infringe on anyone's copyright. As a sort of "pressure valve" every three years, people can "apply" to the Librarian of Congress for exemptions to that rule. This, of course, is completely ridiculous and backwards. We need to apply, once every three years, to use legally purchased products the way we want to without it being considered illegal? That's crazy. But it's the way things are set up, and it can lead to some bizarre scenarios. As we explained last year when the latest round of exemptions was announced, the Librarian of Congress took awaythe exemption for unlocking your phone... but provided a 90 day window.

That window ends on Sunday. In other words, unlocking your phone on Saturday: legal. Unlocking your phone on Sunday: you probably just broke the law. As the EFF properly notes, this is not what copyright law is supposed to be about:

"Arguably, locking phone users into one carrier is not at all what the DMCA was meant to do. It's up to the courts to decide."

I don't even think there's anything "arguable" about it. Copyright law has no business being involved in deciding whether or not my phone can be unlocked. It's silly that this is an issue. It's silly that there needed to be an exemption in the first place. And it's silly that this exemption is being taken away. It's for things like this that people lose respect for copyright law.

from the grateful-for-small-mercies dept

Techdirt has been covering the UK's long-running saga of attempted copyright reform for some years. Most recently, we wondered whether even the Hargreaves Review's moderate suggestions would survive in the face of the usual frenzied lobbying from the copyright industry. Rather remarkably, they have, and the UK government has published a list of the legislative changes it proposes to make (pdf).

These are welcome but hardly revolutionary -- more a matter of dragging UK copyright law into the 21st century. They include:

a private copying exception that lets people make copies of content they have bought, but only for their personal use;

simpler rules for using copyright material in the education sector;

permission for the limited quotation of copyright works for any purpose, as long as the source is acknowledged;

a limited copying exception for parody, caricature and pastiche;

a research and private study exception;

permission to use published research results for data analysis, but only if it is for non-commercial purposes;

permission for people with disabilities to obtain copyright works in an accessible form if there is none on the market;

archiving and preservation exceptions, designed for museums, galleries and libraries;

wider exceptions for public bodies to share some third-party information online.

The government document provides plenty of background information on its thinking, and why it chose to make the exceptions it did. Along the way, it offers some fascinating insights into the submissions from the copyright companies, and how they attempted to stave off change once more. For example, perhaps aware that it would be unable to convince the UK government not to bring in a range of minor exceptions for the public, the copyright industry seems to have adopted a fallback position based around licensing contracts. Here's the issue:

One of the arguments made by creators and rights holders in consultation was that licensing should always preclude or override any exception to copyright: if there is a licence then people should purchase it.

If that reasoning were allowed, it would effectively gut all the new exceptions, since they could always be overridden by licensing contracts imposed on users. Apparently, some went even further:

Some responses to consultation suggested that allowing unlicensed use of works when a licence was available was necessarily a violation of the [Berne] three-step test. The Government believes this view to be incorrect, as the requirement of the three-step test is that the law "does not unreasonably prejudice the legitimate interests of the author", or conflict with the "normal exploitation" of the work.

As the UK government pointed out:

To argue that all exploitation of a work is "normal exploitation" is to reduce the three-step test to two steps, which is manifestly not its intent. Furthermore, a licensing override is potentially inequitable to users: some could be forced to buy licences for uses much broader than the permitted act in question, while others -- where there was no licensing scheme in place -- would pay nothing.

On the other hand:

users and institutions serving users felt that a failure to address the possibility of contract override could and did render permitted acts meaningless, and their benefits wholly or partly unrealised. They argued this was a problem now. Consumers were not in any position to negotiate the terms on which copyright goods were sold or licensed, and even larger users such as institutions argued that negotiation was so resource-intensive as to be effectively impossible as a general rule; prices were not transparent and there was little or no choice of supplier.

Fortunately, the UK government agreed:

to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.

However, there is one area where the proposals fall short: dealing with DRM, or "technical protection measures" (TPM) as the document puts it. The problem is that DRM, like contracts, could easily block many of the new exceptions that the UK government is proposing. Unfortunately, European law does not allow the UK government simply to grant users the right to circumvent DRM in such cases. Instead, there is an incredibly clumsy and inconvenient procedure that must be followed:

In the UK, if a person cannot carry out a permitted act due to a TPM, and the rights holder has refused to provide a 'workaround', the mechanism used is that a user may issue a notice of complaint to the Secretary of State (SoS). The SoS can issue 'directions' to ensure that the permitted act can be carried out.

In other words, if you want to make a backup of an ebook, or transfer a music file to another medium, but are stymied by DRM, you have to write directly to the minister concerned, and ask him or her to contact the copyright holder to provide a copy in some way. Convenient, no?

This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to "alternative" channels to access material they have paid for, is a consequence of the 2001 European Copyright Directive (the European equivalent of the DMCA), which places limits on what the UK government may do in the area of TPMs.

The fact that the UK government is being forced to adopt such a manifestly impractical solution to DRM's override of the proposed copyright exceptions is a stark reminder of the effect other treaties like ACTA and TPP would have, since these too will oblige all signatories to adopt certain minimum legal requirements for copyright and other areas whether or not they think them reasonable or wise. Indeed, it's clear that the copyright maximalists have shifted their attention to such multilateral treaties because they neatly circumvent democratic discussions that can happen within individual nations, substituting instead secret negotiations behind closed doors that members of the public can't even follow, much less influence.

Given these constraints, the UK government has perhaps done the best it could as far as DRM is concerned. The same could be said about the rest of the proposals. None of them is radical or revolutionary, but the fight that it has taken to get them is a reflection of the extraordinary success the copyright companies have had in blocking even the mildest attempt to update copyright legislation in the UK and make it fit for the digital age.

The UK government has stated that it wants to bring the new exceptions into force by October 2013. After all these years, that day cannot come soon enough.

from the but-still-a-long-way-to-go dept

We've covered the efforts by many people over a very, very long period of time to set up a special treaty to help the blind and people who have other reading disabilities have greater access to works that may be covered by copyright. While the US administration rushes through things like ACTA and TPP, it has slow rolled this particular treaty -- bouncing back and forth between supporting such a treaty and not supporting it. Part of this issue, it appears, is that some of the key people in the Obama administration who recognized the value of such an agreement left, and the people who took over are known for their extreme maximalist positions. And, the concern with creating this treaty is that (*gasp*) it might open the door to governments giving people back their rights to make use of products they own.

So it took some people by surprise that the US showed up at the latest WIPO meeting apparently ready to support an agreement. Of course, the devil is in the details and the details showed that the US still didn't want anyone to call the thing a treaty, even as everyone else wants it to be a treaty. The US is also acting very tentatively on this, making it clear that it wants "final review" of the text, and that it might walk away if big copyright holders protest they don't like what they see. After some pressure from just about everyone else, the US has agreed that it will at least show up for discussions on making the agreement an actual treaty -- and that's quite reasonably being seen as progress.

The actual conference to discuss all of this will be held in June, and between now and then, expect all sorts of posturing (mostly by the US) in which they try to limit what's in the agreement and water it down as much as possible. The end result is unlikely to be particularly interesting. It's likely to be very limited and carve out all sorts of things (for example, it will only apply to text, rather than "audio-visual" works -- because, apparently, the MPAA has no interest in making its products more accessible). Having seen all of the scheming and roadblocks US officials have put up over the years concerning what should be a fairly straightforward agreement to help people who are disabled access more content, I'm not particularly hopeful anything useful will come out of this process in the end. But, the big copyright industry can rest easy at night knowing that blind people won't be able to access their materials.

from the sidestep-and-postpone dept

The Dutch Supreme Court (Hoge Raad) has posed some pre-judicial questions to the Court of Justice of the EU regarding the home-copying exception in European copyright legislation -- raising significant questions about what is legal under EU rules and how it meshes with how people actually consume music. Of course, all it really seems to demonstrate is just how messy the copyright system is today. When the top judges of a country cannot figure out the seemingly simple question of whether downloading music and films is legal or not -- mainly due to a huge patchwork of amendments to copyright law over the years -- something needs to change. Drastically. Let's see if we can make some sense of it:

In essence, the home-copying exception allows people to make copies for non-commercial home uses. Such an exception makes a lot of sense, because these private copies are largely impossible to enforce anyway. A levy is imposed on manufacturers of blank media to compensate rights holders for the supposed "losses" from foregone license fees.

The case in question concerns a group of these blank media manufacturers, who refuse to pay the full levies imposed by the collecting society in charge of the compensation for the home-copying exception. The collecting society considers it fair to charge for "losses" that stem from people downloading unauthorized uploads. You see, in the Dutch system, there is a chicken and the egg problem where you may download copyright protected content, but you may not upload (not unlike its policy for marijuana where buying and selling is tolerated, but growing is not). Any uploaded material is therefore often considered to stem from an illegal source. There is a huge political debate about the desirability of this construction in the Parliament.

The Netherlands is one of the few countries that has a system like this, where the end-user is partly taken out of the equation for copyright infringement. This is due to a particularity in European copyright, which is a headache to comprehend, but necessary to understand the confusion of the Court. Here’s a quick summary:

The EU legislator adopted the so called "Copyright in the Information Society" Directive in the year 2001, which was supposed to "adapt legislation on copyright and related rights to reflect technological developments" and make sure all 27 copyright systems in the EU would become more or less uniform. The hope was that this would knock out some of the problems of very different systems, and create a better "single market" for European content.

Of course, no copyright law is complete without the important exceptions and limitations, like the fair-use doctrine in the US. However, in the case of the copyright directive, the exceptions and limitations were optional for Member States, thereby effectively eliminating any chance for a uniform (or "harmonized") copyright legislation in the EU and thus missing the point completely. Information activist Smari McCarthy explains the resulting chaos well:

The directive outlines 21 different optional exceptions or limitations to the right of reproduction of copyrighted works. Each country implementing the directive can choose to either include or leave out the exception clause. This gives us 2,097,152 different ways to implement the directive.

Now repeat this for the 27 Member States, and you see where this fragmentation exercise is going. Since only a few countries have also implemented this home-copying exception and there has not yet been a legal conflict about it, no jurisprudence exists on which the Dutch court can rely. The exception reads as follows:

Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: [...]

[...] in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;

As you see, this text does not include any information on whether the fair compensation should be based on only foregone license fees (implying only copies from legal sources), or whether all copying on blank media carriers should be included.

When the collecting society proposed to start charging for copies from illegal sources in 2008, the manufacturers of blank media went to court hoping for a ruling that levies should only be payable for copies which are allowed under the copyright directive, thus only from legal sources (as this would decrease the levy significantly).

If you read through the lines of the courts’ analysis (and if you understand Dutch), I think you can see quite clearly that the judges tried their utmost to find a way to reconcile this copyright exception with the way people share and use works online. The Court states it would like to give rights holders a fair compensation via a levy system for losses from piracy, but it is unsure if EU law allows this. In its questions, the Court proposes some ways of establishing the mechanism for fair compensation and asks the European court whether this would be permissible under law. The questions asked by the Court are rather technical in nature, but here’s a quick summary of the main points (my interpretation, not a literal translation!):

1. Can the home-copying exception be interpreted so that the exception applies to all copies, regardless of whether the original was an authorized source? Or does the exception only apply to copies, which are derived from an original, which does not infringe copyright itself?
2a. Can the three-step test be used to expand the scope of the exception to include all copies?
2b. Is the Dutch construct – where downloading from any source is legal – in conflict with EU law? Would it help to mention that feasible technical tools to counter the making of private copies is not yet available, which may influence your decision regarding the three-step test? [...]

I find it remarkable that Court contemplates a compensation paid for downloading copyright protected works from an illegal source, but that this does entail that the act of copying of this content is permissible under law. In my opinion, there are simply just two options: either it is permissible to make private copies from an illegal source and we pay the levy, or it is illegal and we don’t pay the levy. I do not agree with the current system either, though, where downloading from illegal sources is permissible but no levies are charged over this.

The court misses some important points here, indeed. First, if people are paying levies for unauthorized downloads, society will perceive their actions to be justified. Second, people mainly use phones, computers and portable devices for music and films. Hardly anyone uses blank media any more. Therefore, levies on CD’s, for example, miss the objective. Third, if a levy is imposed, we get into the sticky situation where actual losses from downloading unauthorized content needs to be determined, which is a seemingly impossible task. Finally, the Court may not have been informed about this, but there’s been a fierce quarrel on the amount charged for levies at the EU level, which has raged on for the past 15 to 20 years. Recently a mediator had to be hired to find a way out of this mess.

Apart from total confusion about the copyright system and how it should be applied to the internet, the Court may have also chosen to sidestep the current and hostile politicized debate in the Netherlands, which was met with opposition from many sectors of society. The Court has not given a conclusive ruling in this debate, so now the European Court may rule on whether the Dutch construction is legal. Expect an update in a few years time!

from the and-why-the-tv-news-guys-may-disagree dept

Like many folks, I saw the news today about the always-wonderful Internet Archive offering up a treasure trove of TV news broadcasting and thought it was a great thing. They're basically making available every TV news recording they could get from 2009 forward, including all of the major TV networks, the news channels (CNN, Fox News, etc.), etc. They'll also have a bunch of local TV broadcasts as well, which is cool. All in all, it's launching with 350,000 clips. They'll even have recordings of The Daily Show as a part of the archive -- which seems fitting, since Internet Archive mastermind Brewster Kahle noted that with this collection, they can "let a thousand Jon Stewarts bloom" by letting them find interesting (or contradictory) news clips.

You can go check out the TVNews Search & Borrow site right now. The search feature is pretty cool, combing through closed captions to find the relevant content. So it's neat to do a quick search on topics of interest and see what they turn up. Of course, there are still a few kinks to work out. Out of curiosity, I did a search on SOPA, and got back some relevant news stories (including the Jon Stewart story about blackout day. But... I also got a bunch of Spanish-language programs about soup. Even when I limited the language to English. I assume those things will get better over time. Each clip is split into 30 second increments, so it's not like you're automatically getting the full broadcast, though you can piece together the clips.

And it's not just a "historical" archive. They're going to continue to add to it, with new clips being available 24-hours after they air.

Of course, all of this made me wonder about the copyright issues involved. The NY Times had this somewhat cryptic statement:

The act of copying all this news material is protected under a federal copyright agreement signed in 1976. That was in reaction to a challenge to a news assembly project started by Vanderbilt University in 1968.

I was curious about that, and a few people pointed me to 17 USC 108 (f)(3), which notes that:

nothing in this section shall be construed to limit the reproduction by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program subject to [a few other clauses concerning archives]...

This is based on the Vanderbilt Television News Archive, which the Internet Archive directly calls out in its own announcement as being the inspiration for this new project. Inspiration... and legal helper.

Indeed, in the early days of the archive, CBS had sued for copyright infringement, claiming that broadcasts could not be recorded without the permission of the networks. At the time of the lawsuit, Congress was in the process of revising the copyright law. Congress recognized the growing importance and influence of television media on American culture, thought, and politics, and felt that news broadcasts should have special protection under the copyright law, to allow the American people access to their own history. Senator Howard Baker of Tennessee introduced an amendment to the 1976 U.S. Copyright Act to give universities and archives the right to record news broadcasts off-air and to make a limited number of copies for research purposes. Following the enactment of the new law with this provision, CBS and Vanderbilt mutually withdrew from the lawsuit.

But does that really make the Internet Archive legal? I'm not so sure the TV guys are going to see it that way. That same report at Historians.org notes that Vanderbilt is not allowed to share nearly all of its collection online -- and it also notes that "The advent of the Internet and the consequent possibility of making digital copies and lending them online have, however, raised new legal problems that need to be resolved." I would imagine that a key one among them is whether or not the Internet Archives' setup qualifies as "lending a limited number of copies."

One would hope that an informed court would recognize that this fits with the intent of Congress in creating this kind of exception, though I fear that the networks are likely to fight pretty hard on this one, even as it seems like this service could really benefit them as well as others, rather than really take away from anything they do.

from the not-too-shabby dept

Despite the absence of credible studies supporting the idea, part of the copyright maximalist dogma is that the wider the reach of copyright, and the stricter the application, the better. As a corollary, copyright exceptions are anathema, which is why the US and EU are still shamefully resisting an international treaty that would enable more books covered by copyright to be produced in versions suitable for the visually impaired, since it would create a minor exception to help make that happen.

Part of the difficulty in contesting this view is that there is also very little research showing that exceptions are important, especially for driving economic growth. That makes a new report called "Excepting the Future" (pdf), commissioned by the Australian Digital Alliance, and pointed out to us by @MsLods, a particularly important contribution to the debate.

It starts by explaining why traditional copyright, devised in an analogue world, is no longer working:

digital content cannot be handled without copying it. Thus in the digital world, the distinction between handling
and copying a work has completely broken down. All handling of digital content, however helpful to society or rights holders, may prima
facie be a breach of copyright, attracting liability to rights holders if they have not permitted it.

It goes on to draw a suggestive parallel:

This situation is dysfunctional. It is not unlike the state of air-space law at the point at which the development of aviation had rendered it obsolete. In the early twentieth century, following Roman Law, land owners held exclusive rights "up to Heaven and down to Hell" giving them impracticable veto powers over air routes.

It was only when legal certainty was established by crafting an exception that allowed aircraft to pass over private property that the aviation industry really developed; the report calls for similar liberating exceptions to be created in Australian copyright law, so as to bring it more in line with the US's looser and highly-successful fair-use framework.

Australia's current copyright system is ill-equipped to cope with key Internet activities like search and indexing, caching and
hosting, since they all involve incidental copying. Theoretically, companies providing those services ought to seek licensing agreements with copyright holders to avoid infringement. The report calculates how much time and money would be required to do that in the case of search engines:

If the 170 search engines listed at www.philb.com/webse.htm transacted with all 3.8 million Australian domain name registrants [to obtain permission to allow their sites to be indexed], it would involve 645 million transactions. If each transaction took 9.5 hours [to allow for multiple communications and checks by the site regarding rights], then, at average weekly wages, the transaction costs would exceed $150 billion a year. And that is just for the Australian domain names.

As well as the huge costs that current Australian law would entail if applied to the letter, the report quantifies the contribution that industries making use of copyright exceptions contribute to the economy: 14% of Australia’s annual Gross Domestic Product, or $182 billion; they also employ 21% of its paid workforce, almost 2.4 million people. The report further estimates the contribution more flexible copyright exceptions, coupled with better safe harbors, would contribute to the economy: around $600 million annually.

Of course, these figures can, and probably will, be contested by those ideologically against copyright exceptions. But it's a start, and a welcome one in the context of the prevalent assumption that more copyright equates to more economic benefit.